Lighten Up, Sandy Baby

John Riggins, bullish (and oafish) running back for the Super Bowl champion Washington Redskins, was seated at the same table with newly appointed Justice Sandra Day O'Connor. He attempted make small talk and Justice O'Connor evidently was not charmed. Riggins said - dismissively - Lighten up, Sandy Baby. Later, Riggins got out of his chair and went to sleep on the floor of the banquet room. I wonder how Riggins stacks up with Justice Clarence Thomas in Justice O'Connor's list of clowns?

[x NYTimes]
June 29, 2003
'The Majesty of the Law': Bench Press
By DENNIS J. HUTCHINSON


THE MAJESTY OF THE LAW
Reflections of a Supreme Court Justice.
By Sandra Day O'Connor.
Edited by Craig Joyce.
Illustrated. 330 pp. New York: Random House. $25.95.


Like the taciturn cowboys she recalled so affectionately in her memoir a year ago, ''The Lazy B,'' Justice Sandra Day O'Connor believes that actions speak better than words and that beliefs require little reflection or explanation. What may be admirable qualities of discretion in an age of self-revelation pose a problem for public figures like O'Connor, who are annually invited to speak before countless civic groups, law schools and bar associations. For O'Connor, who clearly relishes the invitations, the problem is compounded by the traditional ethic of judges against discussing the contested issues that come before their courts, topics that prompt the greatest interest in hearing the speaker in the first place. As she explains in ''The Majesty of the Law'': ''Most audiences would be delighted to hear details of how the court reached a consensus on some hot-button issue, or gossip about the court or its members. But those topics are, of course, off limits.''

Debarred from speaking candidly, O'Connor has elected to explore the histories ''of the Constitution, of the court and of some former members of the court, of the expansion of roles for women, and of the Rule of Law worldwide.'' Still, interspersed among the potted histories of the court and the dutiful memorials to former colleagues are chapters providing an occasional glimpse into the steely judge behind the muted prose.

Not surprisingly, O'Connor is at her most frank and most interesting when she addresses her status as the first woman to serve on the court. What difference has it made to the institution? Her answer is somewhat equivocal. ''My intuition and my experience persuade me that having women on the bench, and in other positions of prominence, is extremely important.'' She adds that until the percentage of women in important office, including the court, comes ''closer to 50 percent, we cannot say we have succeeded'': success would matter not because women bring a different view to judging, or legislating (she served in the Arizona legislature before becoming a state court judge). Only stereotypes, she argues, prevent women from achieving parity, a view borne of her own experience 50 years ago, when the only job a law firm offered her, after she made a distinguished record at Stanford Law School, was as a legal secretary.

O'Connor rejects a study that said her ''opinions differ in a particularly feminine way from those of my colleagues,'' especially in that they ''employ a contextual approach and tend to reject so-called bright-line rules. I would guess that my colleagues on the court would be as surprised as I am by these conclusions.'' The surprise would only be in the label feminine: O'Connor is famous for rather fact-specific and murky tests of constitutionality in extremely important and controversial areas, like abortion and affirmative action.

Yet O'Connor also thinks -- a few pages later -- that women in fact judge differently in some circumstances, even if that should not be a principal reason for appointing them. She points to a study showing that female judges were no more likely to convict female defendants than were male judges, but they were much more likely to send female convicts to jail. ''I believe this was true when I was a trial judge, and I think I know why. Male judges are more likely to believe a sob story from a female defendant. Female judges know better.''

Grounding her view of women in public life is her admiration for two pioneers, Susan B. Anthony and Elizabeth Cady Stanton, both feminists committed to equal rights and not to special privileges because of their sex. ''It is unsettling at times,'' O'Connor says, underscoring the point, ''to hear some modern feminists couch their reform agenda in terms of protection and recognition of their uniquely female perspectives. When gender distinctiveness becomes a mantra, I worry that, in our voyage from the 18th century to the present, we have not really traveled very far at all.''

O'Connor notes that among the 19th-century leaders in that voyage were ''relatively enlightened'' Western states that extended the franchise to women long before their Eastern counterparts. The role of the states looms large in her history of constitutional and feminist development, and dovetails with unflinching commitment to federalism and the prerogatives of the states. In fact, she declares that federalism is a constitutional principle ''nearly as dear to the American people'' as the Bill of Rights and the protection of individual liberties -- a startling claim that may reflect more her Western roots and experience in state government than a measured reading of the evidence.

True to her promise, Justice O'Connor refrains from close discussion of ''hot-button issues.'' Bush v. Gore, which ''determined the outcome of the election,'' barely gets a mention, and the 1973 abortion decision earns a backhanded nod: ''No one, it seems, considers the Supreme Court decision in Roe v. Wade to have settled the issue for all time. Such intense debate by citizens is as it should be. A nation that docilely and unthinkingly approved every Supreme Court decision as infallible and immutable would, I believe, have severely disappointed the founders.''

The founders of the Constitution are vivid players in Justice O'Connor's occasional speeches. Her sympathies seem to lie, at least to some extent, with the Antifederalists -- those who opposed the Constitution, feared strong central government and were committed to preserving maximum sovereignty for the states. The ''Federalists and Antifederalists are in a sense still competing for control of the American political culture,'' she writes. If so, the primary forum for the debate is the Supreme Court, and O'Connor sits -- comfortably, it seems -- at the epicenter. She has been the court's balance wheel for a decade, urging caution when her colleagues at both extremes have sought absolutes. Her adroit negotiation of the issues will be remembered long after her off-the-bench writings are politely forgotten.

Time was when Supreme Court justices spoke only through their opinions and confined their rare extrajudicial publications to professional journals. The Rehnquist court has broken the mold. In addition to O'Connor, Antonin Scalia and William Rehnquist have published books recently, and Clarence Thomas has received attention, and some criticism, for a reported $1.5 million advance on his memoirs. To those who think judges should not profit from their office, it should be noted that the proceeds from Justice O'Connor's book are to be donated to the Arizona Community Foundation.

Dennis J. Hutchinson teaches constitutional law and legal history at the University of Chicago, where he also edits The Supreme Court Review.